Attorneys for Plaintiffs
DAVID ADELSON, et al.

1. Plaintiffs, who are members, contributors, and leaders of defendant PACIFICA FOUNDATION, bring this action to restrain and enjoin the unlawful and undemocratic actions of a majority of the Foundation’s Board of Directors. The Board of Directors, without proper notice and in excess of its lawful authority, has purported to amend the Foundation’s bylaws to eliminate the membership’s role in the election of directors and to thereby create a self-perpetuating Board without any accountability to the members and subscribers of the Foundation. Unless restrained, the Board now threatens to utilize its newly created powers to abandon the mission and historic role of the Pacifica radio network and threatens to sell one or more of the Foundation’s five radio stations.

2. Plaintiff DAVID ADELSON is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and acting chair of the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.

3. Plaintiff LAUREN AYERS is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

4. Plaintiff LYDIA BRAZON is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.

5. Plaintiff CECILIA CARUSO is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WBAI in New York, New York.

6. Plaintiff GAIL DIXON is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WPFW in Washington, D.C.

7. Plaintiff ANNE EMERMAN is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WBAI in New York, New York.

8. Plaintiff SHERRY GENDELMAN is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

9. Plaintiff TERRENCE GUY is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.

10. Plaintiff JIM HORWITZ is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.

11. Plaintiff KAHLIL JACOBS-FANTAUZZI is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

12. Plaintiff DAWUD KHALIL-ULLAH is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.

13. Plaintiff PELE DE LAPPE is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

14. Plaintiff STEVE LUSTIG is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

15. Plaintiff ERROL MAITLAND is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WBAI in New York, New York.

16. Plaintiff ANDREW NORRIS is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WBAI in New York, New York.

17. Plaintiff LEWIS O. SAWYER JR. is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.

18. Plaintiff MARIALICE WILLIAMS is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair of the Local Advisory Board for Pacifica Radio Station WPFW in Washington, D.C.

19. Plaintiff FRIEDA ZAMES is a member of defendant PACIFICA FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local Advisory Board for Pacifica Radio Station WBAI in New York, New York.

20. Each of the plaintiffs named above brings this action on his or her own behalf and as a derivative action pursuant to Corporations Code §5710 on behalf of the Pacifica Foundation.

21. Plaintiffs also bring this action on behalf of all other persons similarly situated, that is, persons who have made financial contributions to defendant PACIFICA FOUNDATION based upon their understanding that the Board of Directors of PACIFICA FOUNDATION would utilize such funds to carry out the long-standing and historic purposes of the PACIFICA FOUNDATION. The class of persons whom plaintiffs seek to represent in this matter is ascertainable, but its members are so numerous that it would be impractical to join them all in this action.

22. Defendant PACIFICA FOUNDATION is a California Nonprofit Corporation with its headquarters and principal place of business in the City of Berkeley, County of Alameda.

23. Defendants MARY FRANCES BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA CISCO, FRANK MILLSPAUGH, JEWELLE TAYLOR-GIBBS, KEN FORD, ROBERT FARRELL, MICHEAL PALMER, WILLIAM LUCY, AARON KRIEGEL, ROB ROBINSON, PETER BRAMSON, and Doe 1 through Doe 10 are and were at all times relevant hereto the directors of the defendant PACIFICA FOUNDATION.

24. The true names and capacities of the defendants named herein as Doe 1 through Doe 25, inclusive, whether individual, corporate, associate, or otherwise, are unknown to plaintiffs, who therefore sue such defendants by fictitious names pursuant to Code of Civil Procedure section 474. Plaintiff will amend this complaint to show their true names and capacities when they have been determined.

25. Plaintiffs are informed and believe, and based on that information and belief allege, that at all times mentioned in this complaint defendants were the agents and employees of their codefendants and in doing the things alleged in this complaint were acting in the course and scope of such agency and employment.

26. The Pacifica Foundation was incorporated on August 24, 1946, by Lewis Hill, H. Don Kirschner, Homer Sisson, William Triest, and John Waldron.

27. The Articles of Incorporation of the Pacifica Foundation, as filed with the Secretary of State of the State of California on August 20, 1948, and at all times since said date, have stated, and do now state, that the purposes of the Pacifica Foundation are, inter alia: "to establish and operate for educational purposes…one or more radio broadcasting stations;" "to encourage and provide outlets for the creative skills and energies of the community;" "to…contribute to a lasting understanding between nations and between the individuals of all nations, races, creeds, and colors; to gather and disseminate information of the causes of conflict between any and all of such groups;… to promote the study of political and economic problems and of the causes of religious, philosophical and racial antagonisms;" "to promote the full distribution of public information; to obtain access to sources of news not commonly brought together in the same medium; and to employ such varied sources in the public presentation of accurate, objective, comprehensive news on all matters vitally affecting the community."

28. Consistent with the purposes set forth in Articles of Incorporation, the Pacifica Foundation now owns and operates five listener supported and publicly supported radio broadcasting stations in the cities of Berkeley, California; Los Angeles, California; New York, New York; Washington, D.C.; and Houston, Texas.

29. In order to carry out its purposes and mission as described above, the Pacifica Foundation has solicited donations from plaintiffs, and the class they represent, for the purposes of acquiring and operating its five radio broadcasting stations. In soliciting such contributions, and in continuing to do so to the present day, the Pacifica Foundation has explicitly represented to plaintiffs and to the class they represent, that all funds so contributed would be utilized to assist the Pacifica Foundation in carrying out its purposes and mission as set forth above and in its Articles of Incorporation.

30. Plaintiffs, and the class they represent, have contributed millions of dollars to the Pacifica Foundation. In doing so, they have relied upon the explicit assurances of the Pacifica Foundation that the funds they contributed would be utilized solely for the purposes of carrying out the mission and purposes of the Pacifica Foundation as set forth above and in its Articles of Incorporation.

31. At all times since August 24, 1946, the Articles of Incorporation of the Pacifica Foundation have provided that the Pacifica Foundation would be governed by its directors and that the number of directors and their method of election would be as set forth in the Bylaws of the Pacifica Foundation.

32. As of and since September 30, 1961, the Bylaws of the Pacifica Foundation have provided that: "There shall be such number of directors as the Board of Directors shall from time to time decide."

33. Beginning on January 9, 1988, and perhaps earlier, the Bylaws of the Pacifica Foundation provided that:
 

SECTION 2 ELECTION OF DIRECTORS: In order to be elected, a member must
receive the nomination and vote of a majority of the station board which s/he
represents, unless such member is classified as an "at large" member, in which
event s/he must be elected by a 2/3 vote of the Board of Directors of the Foundation,
voting by secret ballot, subject to approval of FCC council or FCC.

34. Pursuant to the Bylaw provision set forth above and the procedures that the Pacifica Foundation adopted pursuant thereto, each station board (also known as "Local Advisory Board") chose two members of the Board of Directors of the Pacifica Foundation. Likewise pursuant to such procedures, the number of at large members of the Board of Directors was limited to a number not to exceed one-half of the number of station representatives.

35. On or about February 28, 1999, the Board of Directors of the Pacifica Foundation purported to amend the Foundation’s bylaws to provide as follows: (1) to eliminate the role of the station boards in choosing members of the Pacifica Board of Directors; (2) to vest all authority for nominating members of the Board of Directors in the Board of Directors’ "Board Development Committee;" and (3) to provide that all members of the Board of Directors would be elected by majority vote of the Board of Directors.

36. Since February 28, 1999, the Board of Directors has and threatens further to abandon the mission and purposes of the Pacifica Foundation as set forth in its Articles of Incorporation by eliminating diverse and community oriented programming from Pacifica’s radio stations and by threatening to sell one or more of Pacifica’s radio stations to commercial broadcasting companies in order to realize a profit.

37. Since February 28, 1999, defendants have utilized the resources of the Pacifica Foundation for improper purposes, including but not limited to, the hiring of armed guards to prevent staff and volunteers from carrying out their work at Pacifica Station KPFA in Berkeley. On information and belief, defendants have further utilized the resources of the Pacifica Foundation for the purposes of marketing the Foundation’s radio broadcasting stations.

38. On June 14, 1999, plaintiffs, through counsel, informed the Board of Directors of the Pacifica Foundation, in writing, of the ultimate facts and contentions set forth in this complaint, and requested that the Board take action to remedy and rectify the concerns set forth herein.

39. On June 28, 1999, the Board of Directors of the Pacifica Foundation, through staff, advised plaintiffs that it rejected their contentions and would take no action upon their requests.

40. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in paragraphs 1-39 above, inclusive.

41. Pursuant to the provisions of the California Corporations Code, defendants were required to submit the proposed changes in the Bylaws of the Pacifica Foundation that were considered on February 28, 1999, to the members of Pacifica’s local advisory boards for their consideration and vote.

42. Defendants failed to submit the proposed bylaw changes to members of Pacifica’s local advisory boards for their consideration and vote.

43. By virtue of the foregoing, defendants violated their obligation to submit proposed changes in the Bylaws of the Pacifica Foundation to members of the corporation, including plaintiffs, for their consideration and vote.

44. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in paragraphs 1-43 above, inclusive.

45. Pursuant to the Bylaws of the Pacifica Foundation, defendants were required to give notice of the exact text of the proposed bylaws changes to the members of the Board of Directors along with the notice of the meeting for February 28, 1999.

46. Defendants breached the Bylaws of the Pacifica Foundation by failing to to give notice of the exact text of the proposed bylaws changes to the members of the Board of Directors along with the notice of the meeting for February 28, 1999.

47. Defendants have breached the Articles of Incorporation of the Pacifica Foundation by allowing the resources of the Foundation to be utilized for purposes contrary to those set forth in the Articles of Incorporation.

48. Defendants have breached the Bylaws of the Pacifica Foundation by choosing members of the Board of Directors executive committee and extending the terms of members of the Board of Directors in a manner inconsistent with the Bylaws.

49. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in paragraphs 1-48 above, inclusive.

50. By virtue of the foregoing, defendants have committed unfair business practices and damaged plaintiffs and the class they represent.

WHEREFORE, plaintiffs request that this Court order relief as follows:

1. Order injunctive relief to invalidate the purported February 28, 1999, changes to the Bylaws of the Pacifica Foundation;
2. Order injunctive relief to invalidate actions taken by the Board of Directors of the Pacifica Foundation since February 28, 1999, to the extent to which those actions were the result of the composition of the Board consistent with the purported bylaws changes;
3. Order injunctive relief to restrain and enjoin defendants from utilizing the resources of Pacifica Foundation contrary the purposes and mission of the Pacifica Foundation as set forth in its Articles of Incorporation;
4. Order injunctive relied to restrain and enjoin defendants from selling or otherwise disposing of the assets of Pacifica Foundation;
5. Award damages to plaintiffs, according to proof;
6. Award plaintiffs their costs of suit, including their reasonable attorney’s fees; and
7. Award such other relief as the Court deems just and proper.

I, SHERRY GENDELMAN, declare as follows:

I am a plaintiff in the above-entitled case. I have read the foregoing complaint and know the contents thereof. The same is true of my own personal knowledge, except where stated therein upon information and belief, and as to such matters, I believe it to be true.

I declare under penalty of perjury that the foregoing is true and correct. Executed on July 16, 1999, at Oakland, California.
 
 

_______________________________

Sherry Gendelman